Patent law vs. plant variety protection law: some recent developments
The rules laid down in the Biotech Directive 98/44/EC of 1998 have upset the balance between ‘traditional’ breeders on the one hand and biotechnologists on the other.
Patent laws came into force in many countries during the first half of the twentieth century. For several decades, these laws focused merely on non-living matter. Later on, in some European countries specific plant variety protection regulations were enacted. One of the main reasons for this sui generis protection was the fact that plants, like all living matter, display various peculiarities as a result of the laws of nature; it was thought that the protection of such objects could only be granted following special rules that took these peculiarities into account.
From then on patent law and plant variety protection law existed next to each other, both operating in their own ‘territories’. This position of peaceful co-existence began to change, when biotechnology became increasingly important. From the 1970s onwards, inventions on life forms were increasingly dealt with through the patent system. Plants and parts of plants, as well as breeding methods, appeared to be patentable on the basis of novelty, inventive steps and industrial applicability. Plant varieties per se could not be granted patent protection (see e.g. Article 53b European Patent Convention).
As a matter of fact, both ‘classical’ breeders and ‘modern’ biotechnologists invest a lot of time, money and effort to create new characteristics of plants, new plant varieties and new breeding processes which are beneficial to society. They both deserve protection through intellectual property rights. However, with the current legal situation difficult questions arise. Some of these questions have already been answered in case law, but not all.
Perhaps the most important difference between the two systems is the so-called breeder’s exemption, which is a salient feature in plant variety protection law, but does not exist in patent law: in short, a biotechnologist can freely make use of plant material (protected by breeder’s rights) for further breeding purposes, whereas a breeder cannot, without charge, avail himself of plant material (protected by a patent) with the same intentions. Thus, the provision mentioned above, in combination with the rules laid down in the Biotech Directive 98/44/EC of 1998, have upset the balance between ‘traditional’ breeders on the one hand and biotechnologists on the other.
During the last decade a number of possible solutions to tackle this problem have been proposed, one of these being the introduction of a breeder’s exemption in patent law as well. Of course, this would be advantageous to ‘classical’ breeders. On the other hand, the position of patentees must also be taken into consideration, because the incentive to invest time and money in R & D should not be discouraged: the introduction of a breeder’s exemption in patent law could make it very difficult, if not impossible, to earn back the investments in biotechnology. To a certain extent, the positions taken by the main stakeholders in this field seemed to be irreconcilable for a long time.
Last month, after numerous discussions between all parties involved, a report was presented by the Department of Economic Affairs, Agriculture & Innovation in which several possible solutions were presented. The discussion is now to be continued, not only in our own parliament, but also (and especially) in the EU and even on a global scale.